Sunday, August 25, 2013

Extreme Times, Extreme Demands - The Health of the People Should Be the Supreme Law

Among
the crucial issues raised by the prosecution of Bradley Manning and the
persecution of Edward Snowden is the question concerning what law
should serve. Is law's basic purpose order or justice - the maintenance
of the way things are, or the instantiation of what ought to be? What is
primary, the letter or the spirit of the law?

Over
the course of history, the spirit of the law has generally been
regarded as law's more important dimension. Indeed, without serving a
higher spirit or ideal - such as justice, fairness, or the common good -
the mere letter of the law tends to be conceived of as nothing more
than brute force. It is just this notion that provides the rationale for
acts of civil disobedience; as Martin Luther King put it, citing Saint
Augustine, an unjust law is no law at all. Consequently it has no
authority, moral or otherwise. And while it may sound counter-intuitive,
it is no exaggeration to remark that what is known as the Right of
Resistance has to some degree been a feature of law since biblical times
- for even the bible allows for the breaking of the sabbath, and other
laws, if a person's health, or welfare, is in jeopardy. Axiomatic of
justice, this notion of the spirit of the law prevailing over its mere
letter underpins the US Constitution itself; for in its preamble the
Constitution clearly states that its purpose is, among other things, to
"establish justice," and "to promote the General Welfare." That is,
implicit in the Constitution is the idea that law, the order
of things, must yield to the demands of justice - and that the law that
does not prioritize the general welfare, that is not animated by the
spirit of the law, is no true law at all.

What
is of especial relevance in interpreting the meaning of the General
Welfare is the ancient legal maxim salus populi suprema lex esto.
Ingrained in US Constitutional law, the maxim is attributed to the Roman
philosopher and statesman Cicero (106-43 BC). Once a feature of Roman
law, the maxim spread throughout the Roman Empire. And by the time the
empire dissolved, centuries later, the maxim had become embedded in
legal systems across the former Roman world. Indeed, within early
English common law the maxim carried the force of law itself. Usually
translated as the health of the people is the supreme law, in his Table
Talk, the 17th century English jurist John Selden (referred to by John
Milton as "the chief of learned men reputed in this land") pointed out
that since the term esto is in the imperative mode, its proper
translation ought to be 'the health of the people should be the supreme
law.' In other words, the maxim is not a statement about how things are,
but a command as to how things ought to be. And that is how the maxim
has functioned. It has been used to nullify laws that conflict with this
higher principle. When faced with the question of how things should be,
of what the supreme law should be, the maxim holds that the deciding
factor is the health (or welfare) of the people. Cited in dozens of US
state, federal, and Supreme Court decisions, this maxim continues to
exert persuasive power in US law. However, because the maxim suffers
from the same ambiguity that law itself suffers from, over the centuries
the maxim has been construed to mean either order or justice – the
welfare of the people, or the welfare of the rulers.

For
example, while Machiavelli (in his Discourses on Livy) interpreted the
maxim in a manner that emphasized order, during the 17th century - while
common lands were being converted into salable things, enclosed, and
sold off, rendering the people that had historically lived on those
lands into homeless refugees - the so-called Levellers cited the maxim
to justify their efforts to fight off these enclosures. The health of
the people should be the supreme law, they argued. And because the
health of the people requires land on which to live, its alienation is
contrary to the supreme law and must therefore be halted. Reacting to
the Levellers, among other things, Thomas Hobbes invoked the maxim in
his Leviathan, emphasizing the order of Absolutism. A generation after
Hobbes, John Locke famously employed the maxim as the epitaph to
his Second Treatise on Government. Referring to the maxim, Locke wrote
that it "is certainly so just and fundamental a rule, that he, who
sincerely follows it, cannot dangerously err." By way of Locke, the
maxim influenced the Founders of the US who, like Locke, emphasized the
emancipatory dimension of the maxim in their efforts to free themselves
from the domination of the British Crown.

While
the maxim has been instrumental in justifying the shift from Monarchy
to Democracy, it is not limited to such a use. Incorporated into US law,
the maxim has been cited as an authority from before the ratification
of the US Constitution to the present day - though with varying
interpretations. After the Revolutionary War, for instance, while former
soldiers were besieged by war debts - leading to Shay's Rebellion,
among other uprisings - in South Carolina southern debtors argued that
their war debts should be expunged altogether. The health of the people
should be the supreme law, they argued. And because such debts were
sapping the peoples' strength, thereby harming their health, these debts
should be against the law. The South Carolina courts agreed with this
argument, and debtors' debts were forgiven. While the above example is
problematic, not least because of the proliferation of brutal slavery
(which apparently did not violate the Health of the People), it is
nevertheless an important event in the history of the maxim - a
precedent that contemporary debtors could invoke today to nullify
consumer, student loan, and other debts.

After
the ratification of the US Constitution, and throughout the 19th
century, courts across the United States employed the maxim to justify
the power of municipalities to pursue ambitious public health programs.
Not only were the people empowered to build things - such as sanitation
systems - the maxim empowered people to tear things down as well. If,
for example, a slaughterhouse, or tannery, or any other noxious activity
were found to impair the public health, polluting waterways and other
things, the courts found again and again that the people had the power
and authority to eliminate the offensive operation.

Although
the maxim would be invoked by courts during the early 20th century, and
even by FDR, with the rise of the power of the industrial business
classes the courts employed the maxim less and less frequently. And when
the courts did employ it, they began to emphasize its dominating
aspect. To be sure, this (mis)interpretation has held for much of the
20th century and into the 21st. Recently, for example, the maxim has
been cited by John Yoo, among others, to support the power of the state
to perpetrate torture. Torture, which is directly contrary to the health
of people and justice, does support order and the "health," or
strength, of the state. And, because the notion of the general welfare
suffers from the same ambiguity that law itself suffers from, John Yoo
would very likely argue that torture is itself necessary to achieve the
general welfare. What, however, does the general welfare really require?
What do people require to fare well?

Because
threats to our physical, ecological, and psychological health are
threats to our general welfare (consider, for example, the adverse
effects that global warming, pollution, and war, not to mention poverty,
unemployment, an overblown prison system, and our crumbling
infrastructure have on our collective health), the general welfare
requires that we re-interpret the maxim that the health of the people
should be the supreme law and employ it to direct our collective
resources into creating a genuinely healthy world. To be sure, in many
respects, the creation of the actual conditions of health is no
different from the implementation of concrete conditions of justice.
And, though aspects of this may run counter to the letter of the law,
this is precisely what the spirit of the law demands.

According
to a critical reading of the maxim, if the health of the people should
be the supreme law, then that which is contrary to the health of the
people ought to be against the law too. As such, not only would
social, economic, and other conditions that cause occupational,
industrial, and other diseases be against the law, those institutions
and practices that create - or recreate - obstacles to the conditions of
health (not just obvious practices, like fracking, but deeply
exploitative institutions, like rent) should be against the law as well.
Moreover, if unhealthy conditions such as air pollution, malnutrition,
poverty, war, etc., are illegal - against the supreme law - then this
implies that there is a duty to correct unhealthy conditions; for if the
mere existence of such unhealthy conditions is against the law, a
society would be under a duty to get rid of such conditions of disease
in order to comply with the supreme law. This interpretation of the
maxim leads to the conclusion that where they are absent society has an
obligation to create actual conditions of health - an interpretation of
the maxim that gives rise to positive rights to housing, nutrition,
education, recreation, rest, and other conditions of physical,
psychological, and ecological health. One should not, however, infer
that such an interpretation would allow for intrusions on people's
autonomy. Because autonomy is a constitutive aspect of a critical notion
of health, people must be free to partake in activities that could be
seen as harmful to their personal health - such as using recreational
drugs - so long as such personal activities are consensual and do not
interfere with the health of the people in general.

Some
will no doubt argue that, though conditions of health may not exist, a
market economy provides the most efficient means of achieving these
conditions of health. Among its other deficiencies, however, this
argument overlooks the fact that a fundamental conflict of interest
arises whenever a condition of health - such as health care, nutrition,
housing, etc. - is subordinated to market forces. Because production and
service delivery in a market economy is under a compulsion to derive a
profit (it is, after all, a business) a conflict of interest of
necessity arises between securing profits and securing "health-value."
Because profit is primary in such a system, it is the decisive,
determining factor and as such prevails in conflicts of interest,
exposing people to conditions of disease (sleep deprivation, toxins,
etc.) contrary to the supreme law. Properly creating the conditions of
health (which, according to the maxim, a society has a duty to provide)
therefore requires that these conditions be free from the pressures of
the market. As such, conditions of health (nutritious food, housing,
health care, etc.) must be produced and distributed in a democratic
manner outside of market relations altogether.

This
issue of profit, health, and value brings us back to the question
concerning the purpose of the law. What, in the end, is the law (and the
economy) for in the first place? Is it to merely reproduce what is? Or
is it, rather, to produce what should be? And what should be? Should
"the health of the people" be subordinated to the economy (as it
presently is, resulting in epidemics of cancer, not to mention ecocide,
among other harms)? or should the economy, and other institutions, be
subordinated to the "health of the people"? As already noted, the maxim
maintains that "the health of the people" should be the deciding factor,
the ultimate value, the supreme law. That the word value itself is
derived from the Latin term valetudo, which means health, only further
attests to the deep complementarity of these two notions.

As
we hurtle toward ecological calamities of ever greater magnitudes -
among other harms to our collective health - it is crucial to recognize
that a critical interpretation and application of the maxim that the
health of the people should be the supreme law would not only allow us
to prioritize our collective health and mitigate these actual - and
intensifying - harms, it would also, in many respects, allow for the
concrete realization of conditions of actual justice (housing,
nutritious food, health care, the elimination of war and poverty, the
creation of a healthy environment, the securing of civil liberties,
etc.) throughout the world. While many will no doubt resist such a
radical transformation of the status quo, the reasonable person will
recognize that one must have priorities. And who can reasonably maintain
that our collective health - broadly defined - should not take
precedence over the narrowly construed notions of wealth and order
presently ravaging the planet?

When
one considers the fact that the US Constitution's stated purpose is to
further "the general welfare," and that "the general welfare" is
entirely congruent with a critical, comprehensive, supranational health
(not a superficial, instrumental notion of health, but health as an end
in itself), it is hard to reject the argument that the instantiation of
such a radical, critical health would be nothing less than the
realization of the spirit of the law - the notion that provides the
basis for the legitimacy of law in the first place.